This
opinion is subject to editorial correction before final publication.

Judge
ERDMANN delivered the opinion of the Court.

Appellant
Senior Master Sergeant
Ronald C. Roberts was convicted in a contested general court-martial of
altering a public record, removing a public record, drafting and
printing a
false Air Force form and making a false statement, all in violation of
Article
134, Uniform Code of Military Justice [UCMJ] 10 U.S.C. § 934 (2000).The offenses related to the falsification of
Roberts’ 1998 annual review, known as an Enlisted Performance Report
(EPR).Roberts was sentenced to 12
months’ confinement and reduction to the lowest enlisted grade.The convening authority approved the
confinement but lessened the grade reduction to senior airman.

Prior to
Roberts’ court-martial, the
defense submitted a motion requesting that the court compel the
Government to
disclose derogatory data regarding its witnesses, including the lead
investigator, Air Force Office of Special Investigations (AFOSI)
Special Agent
(SA) “M.”The military judge reviewed in
camera a record of an internal investigation on SA M and denied the
motion.

On appeal
to the Air Force Court of
Criminal Appeals, Roberts argued, inter alia,
that
the military judge’s denial of discovery regarding SA M was erroneous
because
the information withheld related to SA M’s veracity and therefore could
have
been used to impeach him.The Air Force
Court of Criminal Appeals affirmed the findings and sentence in an
unpublished
opinion.

We
granted review of the following issue:

WHETHER THE MILITARY
JUDGE, AFTER
CONDUCTING AN IN CAMERA REVIEW, ERRED BY NOT DISCLOSING TO THE DEFENSE
THAT
SPECIAL AGENT [M] HAD PREVIOUSLY MADE A FALSE OFFICIAL STATEMENT.

We hold that
although the military
judge erred in not ordering the disclosure of the investigative file,
the
nondisclosure was harmless beyond a reasonable doubt and we therefore
affirm
the lower court decision.

FACTS

The
charges in this case arose out of
the circumstances surrounding Roberts’ 1998 EPR.Roberts’
wing commander declined to sign the
original EPR that was prepared for his signature due to his concerns
over a
prior substantiated sexual harassment complaint against Roberts by a
subordinate.He instead directed his
vice commander to sign the EPR.According to testimony at trial, this lower level endorsement
virtually
guaranteed that Roberts would not receive a promotion to chief master
sergeant.The vice commander signed
Roberts’ EPR.

Roberts
was subsequently selected for
promotion to chief master sergeant, which resulted in a complaint being
filed
with the Inspector General (IG).The IG
investigation revealed multiple inconsistent copies of Roberts’ 1998
EPR on
file, which led to a criminal investigation.

In
the course of the investigation by AFOSI, the true EPR signed by
Roberts’ vice
commander was never found.However, two
different falsified versions of the EPR were uncovered.One version was purportedly signed by
Roberts’ wing commander, while the other version was purportedly signed
by
Roberts’ vice commander.The version
with the vice commander’s purported signature contained glowing
language that
the vice commander testified he would not have approved, including a
bullet
which stated Roberts displayed “unmatched initiative, professionalism,
and
personal concern of [sic] subordinates.”

During
an interview with defense counsel prior to trial, the lead AFOSI agent,
SA M,
revealed that he had previously been disciplined, but declined to
provide any
details.Defense counsel subsequently
requested that the Government provide the defense with copies of all
disciplinary actions taken against SA M.A Government attorney-adviser at AFOSI replied in a memorandum
that he
had reviewed records including those maintained on SA M, and found no
information that had to be disclosed.The attorney-adviser further stated that his review of the SA M
investigation “did not reveal that SA [M] lied or falsely testified
about the
matter.”

Defense
counsel then made a motion to compel discovery pursuant to, inter alia, Rule for Courts-Martial 701 [R.C.M.],
which asked for
all derogatory data against all prospective Government witnesses, and
in the
alternative, for an in camera review of that information.The motion specifically referenced the
disciplinary action against SA M.

The
military judge reviewed the records concerning the investigation of SA
M in
camera.The information provided to the
military judge revealed that approximately three years before Roberts’
court-martial, while SA M was at a training course,
he
had sexual intercourse with another married AFOSI member.

The
AFOSI investigative report of that incident contains a summary of an
interview
with SA M on February 13, 1997, in which he reportedly was given a
rights advisement, and initially stated, “This is bullshit.There is no improper relationship,” before he
stopped talking.SA M was subsequently
given testimonial immunity and admitted to the intercourse with the
married
AFOSI member in a sworn statement.He
was not criminally charged, but he did receive an Unfavorable
Information File.

After
reviewing the file provided by the prosecution, including the
summarized report
of the February 13 interview, the military judge denied the defense
motion,
stating, “I have concluded that that file does not contain any
information . .
. which would be proper impeachment matters for the defense to have
knowledge
of and to use in their case.”

DISCUSSION

Roberts
argues that the military judge erred in refusing to order disclosure of
information which showed that SA M made a false official statement.He claims he was entitled to the information
under R.C.M. 701 and under Brady v. Maryland, 373 U.S. 83
(1963).1Our review of
discovery/disclosure issues
utilizes a two-step analysis:first, we
determine whether the information or evidence at issue was subject to
disclosure
or discovery; second, if there was nondisclosure of such information,
we test
the effect of that nondisclosure on the appellant’s trial.

Nondisclosure
of information
pertaining to disciplinary action against SA M.

The
right of an accused to obtain favorable evidence is established in
Article 46,
UCMJ, 10 U.S.C. § 846 (2000).This
statute is implemented in R.C.M. 701 which details the liberal
discovery
practice in courts-martial.Rule for
Courts-Martial 701 sets forth the rights and corresponding obligations
of the
parties to a court-martial.Of
particular importance in this case are the Government’s duties
concerning
disclosure of information requested by the defense which is “material
to the
preparation of the defense . . . ."R.C.M. 701(a)(2)(A).

Discovery
practice under Article 46 and R.C.M. 701 “promote[s] full discovery . .
.
eliminates ‘gamesmanship’ from the discovery process” and is “quite
liberal . .
. .Providing broad discovery at an
early stage reduces pretrial motions practice and surprise and delay at
trial.”Manual for
Courts-Martial, United States (2002 ed.),
Analysis of Rules for Courts-Martial A21-32.The military rules pertaining to discovery
focus on equal access to evidence to aid the preparation of the defense
and
enhance the orderly administration of military justice.To this end, the discovery practice is not
focused solely upon evidence known to be admissible at trial.SeeUnited States v. Stone, 40
M.J. 420, 422 (C.M.A. 1994)(citing United
States v.
Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993)).The parties to a court-martial should evaluate pretrial
discovery and
disclosure issues in light of this liberal mandate.

Roberts
made a proper request to compel discovery of information and the
Government
declined disclosure.Thereafter, at
Roberts’ request, the matter was submitted to the military judge to
review in
camera, pursuant to R.C.M. 701.Under
such circumstances, the military judge may review the information ex parte, in camera, and may order “that the
discovery or
inspection be denied, restricted, or deferred, or make such other order
as is
appropriate.”R.C.M. 701(g)(2).

An
appellate court reviews a military judge’s decision on a request for
discovery
for abuse of discretion.United States v. Morris,
52 M.J. 193, 198 (C.A.A.F. 1999).A military
judge abuses his discretion when
his findings of fact are clearly erroneous, when he is incorrect about
the
applicable law, or when he improperly applies the law.In this case, we are not dealing with any
factual determinations.We are reviewing
the military judge’s determination whether this requested evidence was
“material to the preparation of the defense” for purposes of the
Government’s
obligation to disclose under R.C.M. 701(a)(2)(A).The
military judge’s determination of
materiality in this respect is a question of law that we review de novo.Id.

Information
about SA M’s denial of misconduct to which
he subsequently confessed, whether or
not it constituted proof of a false official statement, was probative
of his
truthfulness and could have been used in preparation of the defense to
determine whether SA M could be impeached under Military Rule of
Evidence
608(b) [M.R.E.].Under M.R.E. 608(b),
specific instances of the conduct of a witness, if probative of
truthfulness or
untruthfulness, may in the discretion of the military judge be inquired
into on
cross-examination of the witness.In
this context however, the question is not whether the military judge
would or
would not have permitted the cross-examination under M.R.E. 608(b), but
whether
the information was material to the defense’s preparation for trial.See R.C.M. 701(a)(2)(A).In light of the Government’s incorrect
statement that the records of the SA M investigation “did not reveal
that SA
[M] lied or falsely testified about the matter”, the defense was left
with no
basis upon which to believe SA M’s veracity could be attacked.

The
defense had a right to this information because it was relevant to SA
M’s
credibility and was therefore material to the preparation of the
defense for
purposes of the Government’s obligation to disclose under R.C.M.
701(a)(2)(A).In addition, the military
judge improperly limited the scope of discovery when he apparently
focused on
admissibility, ruling that the “file does not contain any information .
. .
which would be proper impeachment matters for the defense . . .
to have
knowledge of and to use in their case.”(Emphasis added).We hold that
the military judge erred as a matter of law when he denied the defense
motion
to compel discovery.

Effect
of Erroneous Nondisclosure.

Having
determined that the information should have been disclosed during
discovery, we
now turn to the second phase of our analysis.In this context, an appellate court reviews the materiality of
the
erroneously withheld information in terms of the impact that
information would
have had on the results of the trial proceedings.Both
phases of this analysis involve a
determination of “materiality” but they are two distinct inquiries.The first inquiry at the trial level is
whether the information would be “material to the defense” in the
preparation
of their case and the second inquiry, at the appellate level,
determines the
materiality of the withheld information to the results of the trial.

This
Court has adopted two appellate tests for determining materiality with
respect
to the erroneous nondisclosure of

The
first test applies to those cases in which the defense either did not
make a
discovery request or made only a general request for discovery.Once the appellant demonstrates wrongful
nondisclosure under those circumstances, the appellant will be entitled
to
relief only by showing that there is a “reasonable probability” of a
different
result at trial if the evidence had been disclosed.United States v. Bagley, 473 U.S.
667, 682 (1985); Hart, 29 M.J. at 410; see alsoStrickler v. Greene, 527 U.S.
263, 290 (1999).

The
second test is unique to our military practice and reflects the broad
nature of
discovery rights granted the military accused under Article 46.Where an appellant demonstrates that the
Government failed to disclose discoverable evidence in response to a
specific
request or as a result of prosecutorial misconduct, the appellant will
be
entitled to relief unless the Government can show that nondisclosure
was
harmless beyond a reasonable doubt.Hart,
29 M.J. at 410. Roberts
made a specific request for information about disciplinary actions
involving SA
M.The requested information existed and
the Government declined to disclose it.The request was reviewed by the military judge who erroneously
denied
the motion to compel disclosure.We will
therefore use the “harmless beyond a reasonable doubt” standard in
determining
whether Roberts is entitled to relief.3

The
circumstantial evidence of
Roberts' guilt was overwhelming.Handwriting analyses showed that the signatures on both of the
questioned EPRs had been traced.Roberts’ vice commander testified that the
signature found on the EPR purportedly signed by him was not his, and
that he
would not have approved the laudatory language in two of the six
bullets under
the “Rater’s Rater” section.Roberts had
a motive to fabricate his EPR, in order to get a promotion that he knew
would
otherwise have been denied him.His
fingerprint was found on one of the versions of the 1998 EPR next to
the wing
commander’s falsified signature.

Analysis of
Roberts’ fingerprints
showed evidence that the upper layer of skin on his hands had been
deliberately
altered.An altered copy of Roberts’
1997 EPR with a false signature was

found
in his office desk.It is well accepted
that circumstantial evidence is sufficient to sustain a finding of
guilt.R.C.M. 918(c); see generallyUnited States v. Lewis,
51 M.J. 376, 380 (C.A.A.F. 1999); United States v. Caballero,
37 M.J.
422, 425 (C.M.A. 1993).

Moreover, SA M,
although an
important witness, was far from the linchpin of the Government’s case.He provided foundational testimony for the
prosecution exhibits of the various EPR documents and media files.He also testified about his role in securing
Roberts’ fingerprints and in obtaining handwriting analyses of the
signatures on
the questioned EPRs and about his
interview of
Roberts.Nine other witnesses testified
to Roberts’ motive to forge the EPR, his access to the EPR at the
critical
periods, and the substantial evidence that the documents were in fact
forged.

In light of the
evidence in the
entire record, we are satisfied that the nondisclosure was harmless
beyond a
reasonable doubt.

DECISION

The decision of the United States Air Force
Court of Criminal Appeals is therefore affirmed.

FOOTNOTES:

1
Because we find
that the military judge erred by not compelling disclosure pursuant to
R.C.M.
701(a)(2)(A) we do not address any separate entitlement Roberts may
have had to
this information under Brady v. Maryland, 373 U.S. 83 (1963).

2 Since Hart,
this Court has issued a number of decisions that deal with the
materiality of
undisclosed, discoverable evidence.United States v. Mahoney, 58 M.J. 346, 349
(C.A.A.F. 2003); United States v. Morris, 52 M.J. 193,
197-98 (C.A.A.F. 1999); United States v. Stone, 40 M.J. 420,
422-23 (C.M.A. 1994); United States v. Green, 37 M.J. 88, 89-90
(C.M.A. 1993); United States
v. Watson,
31 M.J. 49, 54-55 (C.M.A. 1990).As
these cases have sometimes used different terminology in stating the
applicable
tests, we take this opportunity to clarify the respective tests and
burdens.

3 Although the
military judge in this case conducted an in camera review of the
disputed
evidence under R.C.M. 701(g)(2), we review
that ruling
as a matter of law, giving no deference to that ruling under our de
novo
standard of review.Similarly, the
appellate standard of review for assessing the impact of improper
nondisclosure
is not deferential because we are not reviewing any trial level
decision.Our appellate assessment of
impact is no
different regardless of whether the discovery issue was ruled on by the
military judge under R.C.M. 701(g)(2) or whether it arose from a
Government
decision to withhold certain evidence that was not discovered until
after
trial.

CRAWFORD,
Chief Judge (concurring in the
result):

This
case is yet another example of the majority
selectively refusing to follow Supreme Court precedent and fashioning a
different standard for the military without a showing of military
necessity.While I agree with the result
in this case, I would apply the Supreme Court’s “reasonable
probability”
standard to the issue of wrongful nondisclosure as this Court did only
last
term in United States v. Mahoney, 58 M.J. 346 (C.A.A.F. 2003).Also following the Supreme Court, I would
apply the “reasonable doubt” standard where there has been perjured
testimony.United States v. Bagley,
473 U.S. 667, 679-80 (1985).By abandoning
Supreme Court precedent in the
present case, the majority is inconsistent not only with this Court’s
rulings
as well as the Supreme Court’s, but it also undercuts the soundness of
its
adjudication.While the end result may
not change, the rationale employed by the majority will only serve to “undermine[] public confidence in the stability,
and
predictability of military justice.”United
States v. Kahmann, ___ M.J. ___
(C.A.A.F. 2004)(Crawford, C.J., concurring
in the result).

Over
the years, the courts have sought to
ensure that the accused’s right to a fair
trial is
not imperiled by the nondisclosure of evidence to the defense.Accordingly, the Supreme Court’s standard of
review for wrongful nondisclosure cases has evolved.See, e.g., Strickler
v. Greene, 527 U.S. 263 (1999); Kyles
v. Whitley, 514 U.S. 419, 437 (1995); United
States v. Bagley, 473 U.S. 667, 682 (1985); United
States v. Agurs,
427 U.S. 97, 103 (1976).In Agurs,
the Supreme Court applied a “strict standard of materiality not just
because
[such cases] involve prosecutorial misconduct, but more importantly
because
they involve a corruption of a truth-seeking function of the trial
process.”Agurs,
427 U.S.
at 104.But, when there is “no reason to
question the veracity” of the verdict, then the Agurs
materiality test would not apply.Id.Our Court
likewise has developed various
tests to decide the issue of wrongful nondisclosure.See, e.g., United States v. Hart,
29 M.J. 407, 410 (C.M.A. 1990)(applying a
beyond a
reasonable doubt standard); United States v. Eshalomi,
23 M.J. 12, 24 (C.M.A. 1986)(indicating that “we need not face [the Bagley]
issue now because, even under the [Bagley]
reasonable-probability test,
reversal is required in this case”).

This
evolution of the standard of review
for wrongful nondisclosure stems from the question of which party bears
the
burden of proof.Addressing this
question in conjunction with standard of review, the Court stated in Strickler, 527 U.S.
at 290 (citation omitted), that the issue is “whether the favorable
evidence
could reasonably be taken to put the whole case in such a different
light as to
undermine confidence in the verdict.”The burden is on the defense to show, first, that there has been
non-disclosure; second, whether the evidence was material; and, third,
whether
“there [was] a reasonable probability that the jury would have returned
a
different verdict[.]”Id. at 296.See alsoBanks v. Dretke, ___ U.S.
___ (2004).If the defense meets the
“reasonable probability” standard, it generally would not be possible
for the
Government to prove beyond a reasonable doubt that the failure to
disclose had
no impact on the verdict.

Notwithstanding
the burden of proof, the
appropriate standard of review remains “reasonable probability” of a
different
verdict.In keeping with this approach,
this Court recently reiterated in Mahoney, as noted supra,
that the
“reasonable probability” test determines whether there has been
wrongful
nondisclosure of exculpatory evidence.In so doing, we opined:

The
constitutional guarantee of due process requires that “criminal
defendants be
afforded a meaningful opportunity to present a complete defense.”California v. Trombetta, 467 U.S.
479, 485 (1984).Accordingly, the prosecution must disclose to the defense
“evidence
favorable to an accused . . . where the evidence is material either to
guilt or
to punishment.”Brady
[v. Maryland,
373 U.S.
83, 87 (1963)].“Favorable”
evidence
under Brady includes “impeachment evidence . . . that, if
disclosed and
used effectively, . . . may make the
difference
between conviction and acquittal.”United States v. Bagley, 473 U.S.
667, 676 (1985) (citations omitted).However, like other forms of exculpatory evidence, impeachment
evidence
is “material” to guilt or punishment “only if there is a reasonable
probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.”Id.
at 682.Under
the “reasonable
probability” standard of materiality, “[t]he question is not whether
the
defendant would more likely than not have received a different verdict
with the
evidence, but whether in its absence he received a fair trial.”Kyles, 514 U.S.
at 434.Therefore,
“[a] ‘reasonable probability’ of a different
result is

.
. . shown when the government’s evidentiary
suppression
‘undermines confidence in the outcome of the trial.’”Id.
(quoting Bagley, 473 U.S.
at 678).

Id. at 349.As
demonstrated through our citations in Mahoney,
this approach is consistent with the Constitution and Supreme Court
precedent.Indeed, Bagley
established a single standard of review, whether there is no request, a
general
request, or a specific request for the nondisclosed
evidence.Bagley, 473 U.S.
at 682.

The
“materiality” issue as applied by the
majority and found in Rule for Courts-Martial 701(a)(2)(A)
[hereinafter R.C.M.] is similar to the language employed in Brady
v.
Maryland, 373 U.S. 83 (1963), and its progeny:

We find the Strickland
formulation of the Agurs test for
materiality
sufficiently flexible to cover the “no request,” “general request,” and
“specific request” cases of prosecutorial failure to disclose evidence
favorable to the accused:The evidence
is material only if there is a reasonable probability that, had the
evidence
been disclosed to the defense, the result of the proceeding would have
been
different.A “reasonable probability” is
a probability sufficient to undermine confidence in the outcome.

Bagley,
473 U.S.
at 682.The materiality standard
mentioned in R.C.M. 701 and the Supreme Court decisions does not
require the
demonstration by a preponderance of the evidence that the disclosure
would have
resulted in the defendant’s acquittal.

Bagley’s
touchstone of materiality is a “reasonable probability” of a different
result,
and the adjective is important.The
question is not whether the defendant would more likely than not have
received
a different verdict with the evidence, but whether in its absence he
received a
fair trial, understood as a trial resulting in a verdict worthy of
confidence.

Kyles, 514 U.S. at 434.It is not a
“sufficiency of the evidence
test.”As the Court noted, a Bagley
error could not be treated as harmless because “a reasonable
probability that,
had the evidence been disclosed to the defense, the result of the
proceeding
would have been different,” Bagley, 473 U.S. at 682,
necessarily entails
the conclusion that the suppression must have “had substantial and
injurious
effect or influence in determining the jury’s verdict.”Brecht v.
Abrahamson, 507 U.S.
619, 623 (1993)(quoting Kotteakos
v. United States, 328 U.S.
750, 776 (1946)).

We
should follow Supreme Court precedent
which sets forth a bright line rule for nondisclosure and closely
approximates
the result this Court seeks to achieve today.The “reasonable probability” rule ensures the rights of
defendants and
protects the interests of the Government.It is a predictable and consistent rule rather than one that
depends on
predilections of the appellate courts in the future.When the categories mentioned by the majority
have to be further defined, I fear the end result will be further
selective
application of Supreme Court precedent in the future.

Because the result in this case is the
same
regardless of which standard is applied, I concur in the result reached
by the
majority.